Representation in Mediation: What We Know From Empirical Research

Professor Roselle Wissler of the Sandra Day O’Connor College of Law at Arizona State University has published an interesting article reporting on empirical studies about the effect, if any, attorneys have on mediation.

Among other issues, the article looks at whether attorney participation in mediation has any measurable effect on mediation outcomes including specifically settlement. See Fordham Urban Law Journal, Vol. 37, p. 419, 2010

This research brings some much need light to the heat of the debate on whether attorneys should be encouraged or discouraged in participating in mediations. While this issue rarely arises in commercial, environmental or in most multi-party mediations or in mediations in which organizations are at the table (attorneys routinely participate), it does arise in family, community and other types of interpersonal cases.

There is a raging debate about attorney participation in such mediations; many argue that attorneys should be discouraged or even prohibited from attending mediation sessions.

The studies actually find few differences between cases with represented versus unrepresented parties. While the available data are too limited to allow any firm conclusions about the role lawyers play in mediation, they do suggest that unrepresented parties may have fewer problems representing themselves than those supporting the role of lawyers might suggest; and that lawyers do not create the problems (i.e. create barriers to settlement) in mediations as others argue.

Here is a summary of the article:

The core of the article examines empirical research findings regarding the effect of representation on several dimensions of the mediation process, including preparation for mediation, party perceptions of the fairness of the process and pressures to settle, the extent of party “voice” and participation in mediation, and the tone of the session. In addition, the article examines the effect of representation on mediation outcomes, including the likelihood of settlement in mediation and the fairness of agreements reached. The studies find few differences consistently associated with representation, suggesting that unrepresented parties might face fewer problems in mediation, and lawyers might create fewer problems, than some claim. But the available research is too limited to be able to conclude that lawyers either play an essential role in mediation or are not needed, or that they are particularly helpful or detrimental to the mediation process. Additional findings show that how lawyers represent clients during mediation is related to parties' assessments of mediation and settlement. The article concludes with a discussion of the additional research that is needed to inform policies and practices regarding representation in mediation.

The article may be downloaded (without charge) from the Social Science Research Network.